Introduction

Section 35(1)(a) of the Immigration and Refugee Protection Act (IRPA) is a cornerstone of Canada’s commitment to upholding international human rights. However, it also carries grave consequences for individuals accused of belonging to an inadmissible class under this section. This provision renders a person inadmissible if they are found to have committed an act outside Canada that constitutes an offense under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.

In recent months, the IRCC has sent Procedural Fairness Letters (PFLs) to individuals, particularly former Punjab Police personnel who served in Amritsar during a tumultuous period in the region’s history. These letters allege participation in crimes against humanity, invoking Section 35 to deny permanent residency or temporary status in Canada.

This blog explores the serious implications of these allegations, why they must be addressed diligently, and how expert legal representation is essential in fighting such unreasonable claims.

Understanding Section 35(1)(a) of the IRPA

Section 35(1)(a)

Immigration and Refugee Protection Act

The Legislative Framework

Section 35 of the IRPA reflects Canada’s commitment to ensuring that its immigration system does not serve as a haven for individuals involved in serious violations of human rights. This section focuses on those who:

  1. Have been directly involved in crimes against humanity.
  2. Have contributed knowingly or significantly to such acts.

Crimes Against Humanity and War Crimes Act

Under sections 4–7 of the Act, crimes against humanity include:

Crimes Against Humanity and War Crimes Act

  • Murder, extermination, enslavement.
  • Torture, imprisonment, and persecution.
  • Enforced disappearances and other inhumane acts.

The Problem with Broad Allegations

Sections 4 to 7 of the Crimes Against Humanity and War Crimes

While Section 35 serves a vital purpose, its application has raised concerns. Broad and generalized allegations against groups, such as former Punjab Police personnel, risk overreach and unjust outcomes.

Procedural Fairness Letters (PFLs): A Growing Trend

What is a PFL?

A Procedural Fairness Letter (PFL) is issued by the IRCC when an individual’s admissibility is in question. It provides:

Procedural Fairness Letter inadmissibility

  1. A summary of allegations.
  2. An opportunity to respond with evidence.

Failure to respond adequately results in the application being denied.

Respond Time for PFL

Punjab Police Allegations

In recent cases, former Punjab Police officers who served in Amritsar during periods of unrest have been targeted. The IRCC’s allegations presume that any individual serving in this capacity contributed to crimes against humanity. This presumption:

High Commission of canada in the UK

  1. Disregards individual circumstances.
  2. Contravenes principles of fairness and natural justice.

Case Example

One client applied for permanent residency and a visitor visa, only to have both applications stalled. On December 4, a PFL was issued, alleging inadmissibility under Section 35.

Procedural Fairness Letters

The Consequences of Section 35 Allegations

1. Immigration Status

  • Permanent Residency: Denied based on inadmissibility.
  • Temporary Status: Applications for visitor visas, work permits, or study permits are also rejected.

2. Reputational Damage

  • Allegations under Section 35 carry a stigma of association with crimes against humanity.
  • This impacts personal and professional relationships.

3. Financial and Emotional Strain

  • Legal battles are time-consuming and expensive.
  • Individuals face uncertainty and distress during prolonged processes.

Legal Defenses Against Section 35 Allegations

  1. The Concepcion Case (2016 FC 544)

The Concepcion Case (2016 FC 544)

 

standards for Section 35 allegations

This landmark case clarified the standards for Section 35 allegations:

  • The Federal Court emphasized the need for specific evidence proving that an individual made a knowing and significant contribution to crimes against humanity.
  • Broad assumptions of guilt are insufficient.

    2. The Role of Evidence

Strong evidence is crucial for countering allegations, including:

  1. Detailed affidavits explaining roles and responsibilities during employment.
  2. Expert opinions on the historical and legal context of the allegations.
  3. Testimonies highlighting a lack of personal involvement in human rights violations.

    3. Procedural Fairness

A robust response to a PFL involves:

  • Timely submission of evidence and legal arguments.
  • Addressing each allegation with factual counterpoints.

Why Expert Legal Representation Matters

1. Navigating Complex Laws

Experienced litigators like Mr. Navratan Fateh bring a deep understanding of both Canadian and Indian legal systems. This dual expertise ensures:
  • Effective counterarguments to IRCC claims.
  • Comprehensive legal strategies based on international precedents.

2. Meeting Federal Court Standards

The Federal Court demands evidence that meets a high standard of proof. Lawyers with litigation experience know how to:
  • Craft affidavits and legal submissions that satisfy these standards.
  • Reference landmark cases like Concepcion to bolster defenses.

3. Avoiding Common Pitfalls

Self-representation or inexperienced counsel can lead to:
  • Misinterpretation of legal requirements.
  • Submission of inadequate or irrelevant evidence.

Broader Implications of Section 35 Allegations

Impact on Families

The consequences of inadmissibility extend beyond individuals, affecting:

  • Family reunification efforts.
  • Spousal and dependent visa applications.

Canada’s Stance on Human Rights

While Canada’s commitment to human rights is commendable, overreaching allegations:

  • Undermine the fairness of its immigration system.
  • Risk alienating communities with a history of conflict.

How to Respond Effectively to a PFL

Step 1: Seek Legal Counsel Immediately

Contact experienced lawyers who:

  1. Understand Section 35 and related case law.
  2. Have experience in Federal Court challenges.

Step 2: Collect Evidence

  • Compile documentation of your role and responsibilities.
  • Gather expert testimonies to contextualize your employment.

Step 3: File a Strong Response

  • Submit your response within the timeline specified in the PFL.
  • Ensure that every claim in the PFL is addressed with factual counterpoints.

Conclusion: Fight Back with Confidence

Section 35 allegations are serious, but they can be challenged successfully with the right approach. Individuals accused under this provision should:

  1. Recognize the gravity of the situation.
  2. Engage expert legal representation.
  3. Fight allegations with strong evidence and compelling legal arguments.

Canada’s immigration system must balance its commitment to human rights with principles of fairness and justice. Overreaching allegations, such as those targeting Punjab Police personnel broadly, threaten to undermine this balance. By hiring experienced counsel like Fateh Law Corporation, individuals can protect their rights and ensure a fair hearing.

This blog is designed to be detailed, practical, and a guide for those facing the life-altering consequences of Section 35 allegations.